from the copyright-as-censorship dept

Another day, another example of copyright as censorship. Today's example comes from the RIAA. TorrentFreak has the story of how the RIAA has suddenly (for no clear reason) decided that ReelRadio's historical archive of radio airchecks is problematic. ReelRadio, created (and apparently last designed) in 1996, is a non-profit organization focused on preserving music radio history. Airchecks are demo reels, showing off the talents of radio announcers, and are a pretty useful and fascinating look into the history of radio. But, as far as the RIAA is concerned, ReelRadio is nothing more than a pirate site. This is despite the fact that ReelRadio actually has a license to play the music that is often incidentally included in airchecks.

“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed,” ReelRadio President Richard Irwin explains.

And then there's this:

“The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin explains.

“Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”

It seems like ReelRadio would have an astoundingly strong fair use defense, but actually taking on the RIAA in court is likely prohibitively expensive (and distracting), though I'd hope that the organization could find some pro bono legal support. TorrentFreak argues that the RIAA may be on "solid ground" legally, but I don't see how this doesn't pass the fair use sniff test. The purpose and character of the use clearly falls into fair use. The nature of the work (an aircheck) also clearly leans towards fair use. The amount and substantiality taken may at first look like it leans against fair use, but the recent Westlaw ruling demonstrated that when it is "necessary" to copy the entire work for the intended purpose, that also supports fair use. It's possible this could weigh against ReelRadio, given that an argument could be made that the airchecks could be "scoped" (i.e., have all music removed), but that would certainly lessen the value of the archive. And, finally, the commercial impact clearly weighs (strongly) towards fair use.

Honestly, I'm curious exactly what kind of "license" the RIAA claims to have sold ReelRadio in the first place, because now it seems like the RIAA has been ripping off ReelRadio for years, demanding payments for something that doesn't need payment. Either way, ReelRadio appears to have taken down over 1,100 of those unscoped airchecks, basically deleting them from history. Thanks, RIAA, for helping to destroy culture and hide it from public view (potentially forever) yet again.